Citation NR: 9722437
Decision Date: 06/26/97 Archive Date: 07/02/97
DOCKET NO. 95 - 38 620 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Cleveland,
Ohio
THE ISSUES
Entitlement to service connection for defective vision of the
right eye.
Entitlement to service connection for defective hearing of
the right ear.
Entitlement to service connection for tinnitus.
REPRESENTATION
Appellant represented by: Paralyzed Veterans of America,
Inc.
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
Frank L. Christian, Counsel
REMAND
The veteran served on active duty from September 1950 to
April 1952.
This matter comes before the Board of Veterans’ Appeals
(Board) on appeal from a rating decision of September 1994
from the Department of Veterans Affairs (VA) Regional Office
(RO) in Cleveland, Ohio.
The appellant contends that the RO erred in failing to grant
entitlement to service connection for defective vision of the
right eye, for defective hearing of the right ear, and for
tinnitus because it did not take into account or properly
weigh the medical and other evidence of record. It is
contended that the disabilities at issue were incurred in
November 1950 while in basic training at Camp Matthews,
California, when a drill instructor struck him on the back of
the head with a pugil stick; that he lost consciousness; and
that he was initially treated at the Camp Pendleton
dispensary but was transferred by ambulance the following day
to the US Naval Hospital, Balboa (San Diego). It is further
contended that he sustained a three-inch laceration over his
right eye and a 12-inch laceration to his right cheek when
struck by the drill instructor. It is further contended that
he was hospitalized for four to five days at the US Naval
Hospital, Balboa, for evaluation and treatment of eye
problems, headaches, and ringing in the ears. It is further
contended that he lost the vision in his right eye, the
hearing in his left ear, and developed tinnitus at the time
of his injury in November 1950; that he did not undergo the
examinations indicated in his service medical records in
March 1951, on service separation in April 1952, or during
Marine Corps reserve service in January and November 1953;
and that he was never in the US Naval Hospital, Corona, in
March 1952, as indicated in his service medical records. It
is further contended that he had good
vision prior to service entry and never wore eyeglasses; that
he began wearing glasses in 1976 to improve the reading
vision in his left eye; and that he never sought medical
treatment for his right eye and ear disabilities prior to VA
examination in June 1994.
The Board notes that the VA examination of the veteran’s
visual and hearing acuity in June 1994 was conducted without
review of the veteran’s claims folder or his service medical
records. Further, the audiological examiner evidently
accepted an unsubstantiated history provided by the veteran,
and offered a diagnosis of “blind in the right eye secondary
to trauma in 1950” and “loss of hearing, right greater than
left, possibly due to trauma in 1950.” The Board notes that
the medical evidence of record, including the veteran’s
service medical records, is silent for any evidence of trauma
to the veteran in 1950 or at any other time. The Board finds
that the VA eye and ear examination of June 1994 is
inadequate, defective, and not credible in that it relied
exclusively upon a purported history provided by the veteran,
and the examiner clearly did not review the medical history
and clinical evidence contained in the claims folder.
The United States Court of Veterans Appeals (Court) has held
that the Board correctly rejected a medical opinion where
“the conclusion reached by the physician [was] clearly based
on the history provided by the veteran.” Reonal v. Brown, 5
Vet.App. 458, 460 (1993). “[The] Board [is] not bound to
accept opinions of two physicians who made diagnoses ...
almost 20 years following appellant’s separation from service
and who necessarily relied on history as related by
appellant.” Reonal, supra; Swann v. Brown, 5 Vet.App. 229,
233 (1993). The presumption of credibility of the evidence
does not arise where the examining physician relied upon the
appellant’s account of his medical history and service
background ....[and] “An opinion based upon an inaccurate
factual premise has no probative value.” Reonal, supra
Further, a General Counsel opinion, issued in July 1995, held
that, pursuant to the statutory duty under 38 U.S.C.A.
§ 5107(a) to assist a claimant in the development
of facts pertinent to a claim, and the decisions of the Court
of Veterans Appeals interpreting that duty, a Department of
Veterans Affairs examiner must review a claimant’s prior
medical records when such review is necessary to ensure a
fully informed examination or to provide an adequate basis
for the examiner’s findings and conclusions (emphasis added).
VAOPGCPREC 20-95 (O.G.C. 20-95).
In that connection, the Court has held as follows: A VA
examination which failed to include a review of all of the
veteran’s medical records [was] in violation of the duty to
assist. Culver v. Derwinski, 3 Vet.App. 292, 299 (1992).
“The examiner must have the full medical record of the
veteran prior to making the evaluation.” Shoemaker v.
Derwinski, 3 Vet.App. 248, 255 (1992). “In order for [VA]
to fulfill its duty to assist ... a thorough contemporaneous
medical examination, one which takes into account the records
of prior medical treatment, [is required] so that the
evaluation of the claim[ed] disability will be a fully
informed one.” 38 U.S.C.A. § 5107(a); Roberts v. Derwinski,
2 Vet.App. 387, 390 (1992); Green v. Derwinski, 1 Vet.App.
121, 124 (1991). In remanding for another [psychiatric]
evaluation because “apparently the claims folder was not
reviewed by the examiner”, the Court held that “[i]t is . . .
essential, both in the examination and in the evaluation of
disability, that each disability be viewed in relation to its
history.” 38 C.F.R. Part 4,§ 4.1; Tucker v. Derwinski, 2
Vet.App. 201, 203 (1992).
The Board further notes that the RO has not obtained records
of treatment of the veteran for visual problems in 1976 by
Marion Korstante, MD, 1508 6th Avenue, Huntington, West
Virginia, 25705, or copies of the treatment records of the
veteran in the possession of Bill Lewis, DO, 361-B Norway
Avenue, Huntington, West Virginia, 25705, commencing in 1992.
The Board further notes that the veteran has requested
another personal hearing at the RO before a traveling Member
of this Board. The RO should determine whether the veteran
continues to desire such a hearing and, if so, such hearing
should be scheduled prior to returning the case to the Board.
Based upon the foregoing, the case is Remanded to the RO for
the following actions:
1. The RO should ask the veteran to
identify specific names, addresses, and
approximate dates of treatment for all
private and VA health care providers from
whom he has received treatment for the
disabilities at issue since service
separation. With any necessary
authorization from the veteran, the RO
should attempt to obtain copies of all
pertinent records identified by the
veteran that have not been previously
secured. In any event, the RO should
obtain copies of the complete clinical
records of the veteran’s treatment by
Marion Korstante, MD, 1508 6th Avenue,
Huntington, West Virginia, 25705, and
copies of the complete clinical records
of the veteran in the possession of Bill
Lewis, DO, 361-B Norway Avenue,
Huntington, West Virginia, 25705,
commencing in 1992.
2. The RO should request the complete
clinical records, progress notes, nurse’s
notes, and discharge summaries pertaining
to the veteran’s hospitalizations at the
US Naval Hospital, San Diego, in November
1950, and from the US Naval Hospital,
Coronado (San Diego), in March 1952, both
from the National Personnel Records
Center and directly from those
facilities.
3. The veteran should then be scheduled
for special VA ophthalmologic,
audiologic, and audiometric examinations
by board certified specialists to
determine the current nature, extent, and
etiology of any visual or auditory
deficit found present. The examiners
must
review the veteran’s claims folder prior
to the requested examination, and may not
rely upon a history provided by the
veteran. All appropriate diagnostic
tests and procedures must be implemented,
and the findings reported in accordance
with the applicable provisions of the
Physician’s Guide for Disability
Evaluation Examinations.
4. Following completion of the
foregoing, the RO must review the claims
folder and ensure that all of the
requested development actions have been
conducted and completed in full. If any
development is incomplete, or if the
requested examination reports do not
affirmatively reflect that the examiners
reviewed the veteran’s claims folders,
the examination reports are inadequate
and appropriate corrective action should
be implemented prior to returning the
case to the Board.
5. The RO should determine whether the
veteran continues to desire another
personal hearing at the RO before a
traveling Member of this Board and, if
so, such hearing should be scheduled
prior to returning the case to the Board.
6. Then, in light of the additional
evidence obtained, the RO should
undertake any additional development
indicated and readjudicate the issues of
entitlement to service connection for
defective vision of the right eye, for
defective hearing of the right ear, and
for tinnitus.
If the benefits sought on appeal are not granted to the
appellant’s satisfaction or if a timely Notice of
Disagreement is received with respect to any other matter,
the RO
should issue a Supplemental Statement of the Case, including
all applicable law and regulations, and the appellant and his
representative should be provided an opportunity to respond.
The appellant should be advised of the requirements to
initiate and perfect an appeal on any issue addressed in the
Supplemental Statement of the Case which is not currently on
appeal. The case should then be returned to the Board for
further appellate consideration, if otherwise in order. The
Board intimates no opinion, either legal or factual, as to
the ultimate disposition of these claims.
F. JUDGE FLOWERS
Member, Board of Veterans' Appeals
38 U.S.C.A. § 7102 (West Supp. 1996) permits a proceeding
instituted before the Board to be assigned to an individual
member of the Board for a determination. This proceeding has
been assigned to an individual member of the Board.
Under 38 U.S.C.A. § 7252 (West 1991), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Veterans Appeals. This remand is in the nature of a
preliminary order and does not constitute a decision of the
Board on the merits of your appeal. 38 C.F.R. § 20.1100(b)
(1996).
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